(August 2007) New restrictions are now in place: anyone wishing to buy or transfer a regulated firearm (handguns or some long guns) must now sign a release of health records for MSP to check whether the applicant's claims elsewhere on the form (e.g. that he is not ‘disabled' – barred from possessing a gun – as a result of having been treated for mental illness) are true. An application submitted to MSP without this release will be administratively denied.
As we reported last month, these restrictions are enacted without the legislature passing a bill, without an agency drafting a regulation, and without opportunity for public review or comment. Welcome to the brave new world.
What's going on? The initial implementation of this program is intended to expose whether a purchaser has lied (representing he is not disabled) only with respect to treatment in a state facility. While there is no known obligation for a state facility to report treatments to a central clearinghouse, the theory is that MSP's check of DHMH (Dept of Health and Mental Hygiene) might expose patients who, under the law, should not possess a gun. This program would not be likely to expose a patient who had been treated at a private facility. (Make sure you are clear on that. Before this restriction took effect, police were unable to fully check the veracity of statements made by an applicant. After this restriction took effect, police are unable to fully check the veracity of statements made by an applicant.)
Is this needed? Apparently not. In 1996 – via Glendening's Gun Violence Act of that year, the first of his omnibus gun packages – the state placed onto one's ‘licensed attending physician' the burden of reporting when a patient becomes disabled. Nobody becomes disabled without either a court record or a doctor involved, so this was said, at the time, to plug a “loophole” in the law. Apparently, doctors have not been reporting disabilities at the rate MSP thinks they should, so rather than burden exactly those people who may not own a firearm, the state is placing a disclosure obligation on all retail gun purchasers – a vast overreach – in the hope of netting the few who may have gone through a state treatment system. They want more information from everyone for a less accurate system.
Is that it? No. The administration says police won't actually examine details of a patient record – they only want to check whether there is one in the state health system, and hence expose a possible lie. In the first roll-out, this is probably true. However we get very different stories for what lies in the future depending on who we talk with. During Ehrlich's administration, the state Ceasefire operation – gun grabbers on the state payroll – was reorganized out of the governor's office and into state police headquarters. (This improved anti-gunners' influence on troopers who actually grab the guns.) Some people affiliated with Ceasefire suggest a “low profile” rollout of mental health checks is intentional, making it look innocuous in order to streamline acceptance. They fear early pushback. Once the policy is established, they plan to advertise it as a ‘first in the nation' left wing coup – then fiddle with details.
Other officials say (we think with sincerity) it goes no further than the initial rollout. Unfortunately that flies in the face of what the forms say. The release is for all medical records in any government system, in Maryland, other states or federal. Moreover, the same justification stated for police to look at these records for a disability based on mental health would also compel them to examine records for other reasons to deny an application (and then pursue the applicant on charges, since the act of attempting to buy a regulated firearm while disabled is a separate crime.)
[Ceasefire zealots will not be able to claim this as a ‘first in the nation' political coup as they claim. New Jersey has included a release in its applicant forms for years, though it is of hypothetical value because of all the other barriers to lawful gun ownership there. To date no NJ official we interviewed can recall an applicant actually getting to the point of a transfer but then being denied because of a mental health disability. Usually they're denied far earlier.]
What are the consequences? We anticipate some buyers who didn't know they were disabled will find themselves charged after MSP, armed with new information, discovers a patient record on them in the state health system. There shouldn't be many at first – it isn't like this is a problem crying for redress, after all. (It was failure in the Virginia social safety net which allowed the Virginia Tech tragedy, the act that precipitated this exercise in the first place. None of these problems exist in Maryland. MSP record-keeping was upgraded in the wake of the Spicknall shootings a few years ago, after a nut under a protective order inappropriately got a pistol with MSP's blessing, then whacked his kids.) (We're happy to report that Spicknall died in prison under mysterious circumstances this spring.)
One staffer, not authorized to speak for his agency, who was asked if he thought this might have a chilling effect on lawful gun purchases, smiled and said “I certainly hope so.” The ostensible reason for record checks is mental health, but remember: you can become disabled because of alcohol or misuse of drugs – both medical problems that are often treated in the state health system. Ceasefire will go after patients having those disabilities too. Knowledge that police access to medical records could affect rights will inhibit patient willingness to seek treatment. The same staffer confirmed that MSP's release would allow him to contact the Veteran's Administration, to determine if a vet had a partial disability for post traumatic stress disorder. “We don't want deranged Viet Nam vets getting guns.”
It isn't a stretch to ask how long it will be until MSP decides to strengthen the program's modest check into one that allows police to exercise discretion in who they approve. They already do this using other information on the form – will they soon decide that applicants having, say, a nervous disorder shouldn't be allowed to possess a handgun, on some theory that the patient ‘can't handle it safely'? At what medical condition will they draw the line? Police have already demanded that health records and doctor testimony be produced by citizens having no gun disabilities who are trying to get their property back – witness the Mora case, of which we have reported in the past. MSP implemented the present system without law or citizen input. Unchecked, they will do it again.
What is the legality of this change? Tenuous at best. Under law, MSP must check the veracity of statements made by an applicant for a regulated firearm, and the agencies they may contact for this purpose are listed by name. DHMH is not listed. That should be a dead-bang reason why MSP can't make this change, but the assistant attorney general there argues that the listing of agencies to be contacted is merely advisory, and that MSP is bound to check all statements regardless. (No word on why they weren't doing this years ago, if they thought this true. In contrast, we would point out that obligations of the applicant are explicitly called out by law, and giving a release to access health records isn't a listed obligation. To do this, MSP should at least draft new regulations, if not pass a new law.)
There are federal issues as well. The Health Insurance Portability and Accountability Act (HIPAA) places strict and clear conditions on release of patient information. MSP argues that a request to purchase some handgun is voluntary and so a release should easily let them troll for information. We in turn would point out that HIPAA was enacted by Congress under the representation that stockpiled medical information would never become a pond for police fishing expeditions. Conditioning the exercise of one's right upon satisfying some new administrative obligations, and then claiming it is simply voluntary, makes a mockery of the Bill of Rights. (Would literacy tests and poll taxes be lawful in elections because citizen voting is voluntary?) Regardless, to date we have seen no evidence that MSP personnel will be held to strict HIPAA standards for handling patient records, whether freely given or just taken.
What are the politics? Contrary to some spin, Gov. O'Malley does not appear to be the issue's driver. He made an inquiry after Virginia Tech (as he should) but this policy came out of Ceasefire and was approved by Col. Sheridan within days of his taking over at MSP. This young governor hasn't yet learned to keep MSP on a short leash.
O'Malley may not be the driver, but that doesn't mean we are free to wildly attack this program. It must be opposed with skill. Ceasefire knowingly baited a fight, and now hides behind the governor's skirts begging us to take a shot in hopes we will hit O'Malley. (Some Republicans want that too.) If that happens, the administration would close ranks and posture more over a political slight than over some pissant state policy they'd never heard of until now.
Where is the pushback? Though details are sparse, the National Shooting Sports Foundation indicates it is seeking a solution. Said NSSF's Larry Keane: “I t is yet more paperwork for the dealer, it is overly broad and grants the government access to private records that are irrelevant to the determination of whether a person is a prohibited person. This will discourage law abiding individuals from freely exercising their Second Amendment rights.”
NRA is not yet in the game, but should it get involved, it isn't clear on what side it will land. Signals are mixed. An email circulated on the internet cites Del. Mike Smigiel as the source of authoritative assertions that the NRA will litigate in order to stop this measure. In contrast, some administration staff indicate they have had cordial exchanges with gun groups and say they expect to have NRA's support. They observe that NRA is now promoting federal legislation to help states report mental health disabilities to NICS (the instant check system) and suggest it would be natural for the organization to back increased state-level screening at the same time. NRA's new Maryland lobbyist has been legitimately engaged fighting in other of his states (like New Jersey) and did not comment for this article.
Dealers are clearly between a rock and a hard place. Most that we talk with privately recognize the problems in this measure, but at the end of the day, they need to sell guns. When they tell you that signing away your right to private health records is not a problem, they're right. It isn't a problem – for them. It's your medical records that police get.
Bottom line: The situation is still evolving rapidly, and the potential consequences to anyone giving this release are both great and unknown at this time. As is said in the industry, ‘computers are forever' – records you give out today are the genie out of its bottle, never to be called back. Right now we simply don't know what other new plans these Ceasefire gun grabbers have for health records they can nab, but we would bet money it isn't good for the citizen. We don't want our subscribers to become test cases. Until the picture firms up enough so you can make an informed decision about release of your information, our advice is simple: do not attempt to transfer a regulated firearm . [This is a classic “Catch-22”. Anyone who would give MSP a blanket waiver of their right to privacy is clearly providing evidence they are crazy, which means they can't own firearms. Anyone refusing to sign over rights is clearly sane and can be trusted with a gun, yet, wouldn't be able to get one … ] We will update as the situation develops.